P v Department of Veteran's Affairs [1997] HREOCA 68 (24 July 1997)

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
RACIAL DISCRIMINATION ACT 1975 (CTH)

No. H95/129

Between:

Mr P
and
Mrs P
Complainants

And:

The Secretary, Department of Veterans= Affairs
Respondent

REASONS FOR DECISION

Stephen Keim
Inquiry Commissioner

Location of Hearing: Brisbane
Hearing Date: 17 March 1997
Date of Decision: 24 July 1997

Appearances: Mrs P on her own behalf and as agent for Mr P.

Mr Ted Harrison, employee for the respondent.

Introduction
By letter dated 24 July 1995, signed by both Mr P and Mrs P a complaint was lodged concerning the failure of the Veterans= Affairs Department to provide a certificate for a subsidised loan pursuant to the Defence Service Homes Act 1918 (Αthe DSH Act≅). Notices of eligibility and certificates of entitlement for the subsidies which underlie subsidised advances are issued pursuant to ss. 16 and 17 of the DSH Act.

A letter of complaint which forms part of the referral report, Exhibit 1, was not particularly informative. Acting on what was perceived to be a citizenship issue, Ms Doumany, Senior Conciliator for the Human Rights and Equal Opportunity Commission (Αthe Commission≅) as delegate for the Race Discrimination Commissioner (Αthe Commissioner≅) made a decision pursuant to s. 24(2) of the Racial Discrimination Act (Αthe RDA≅) not to enquire into the matters raised by the complaint. Ms Doumany said:

Α.......After having given careful consideration to the matters raised by your complaint with the assistance of legal advice, I am of the opinion that the matters you raise are not covered by the provisions of [the RDA]......

This is because Article 1, Part 1, paragraph 2 of the International Convention on the Elimination of all Forms of Racial Discrimination which forms a schedule to the [RDA], states that the Convention does not apply to matters relating to citizenship.≅

By letter dated 16 October 1995, Mr and Mrs P requested that the matter be referred to the Commission pursuant to s. 24(4) of the RDA. By letter dated 20 November 1995, the matter was referred pursuant to s. 24(5) of the RDA to the Commission. The relevant report is enclosed with that letter and, with it, forms exhibit 1.

The Hearing
The matter came on for hearing on Monday, 17 March 1997. Mr Harrison, a legally qualified employee of the Department of Veterans= Affairs, appeared for the respondent. Mrs P appeared as agent for her husband and for herself. In accordance with directions made by consent previously, Mrs P made her submissions by telephone from the home in which she and her husband reside at the Gold Coast and Mr Harrison was present in the hearing room.

At the hearing I directed, pursuant to s.25J of the RDA, that publication of the matter should not identify either of the complainants. That direction continues.

Factual Background
In her submissions, which are exhibits 3 and 4, Mrs P set out a number of factual matters which were not disputed by Mr Harrison. Mrs P said that Mr P is disabled to the extent that he is unable to represent himself. Mr P was born in Epsom, Auckland, New Zealand, on 17 June 1920. He went to Auckland Grammar School for three years and emerged with his High School Certificate in 1936. He had served in the army cadet corp at that school while he was attending.

Mr P commenced work with the Prudential Insurance Company as a cadet merchant banker. After the second World War commenced in 1939, Mr P volunteered. He served for three years with the New Zealand Army Artillery Corp and was stationed at a number of places in New Zealand. In 1942, he was transferred from the Army to the Air Force at two different locations in New Zealand. On 19 April 1943, Mr P was injured in a serious accident involving an aeroplane and was off active duty for a period of some six months. He then went back into active training and, after eight months, travelled to Brighton in England.

Along with a number of other service people from Australia and New Zealand, Mr P was assigned to a particular Royal Air Force squadron and, for all practical purposes, lost his separate identity as a member of the New Zealand Air Force.

After serving in England for three months, Mr P was assigned to squadron No. 5 in the Middle East and was involved in active combat for a twelve month period before the end of the war. During his service, he was given several bravery medals and became a commissioned officer. This was despite the continuing impact of the injuries he suffered in the 1943 accident.

Mr P travelled back to New Zealand and was demobilised in 1946.

The injuries suffered in the 1943 accident have continued to affect Mr P during the whole of his life. His first marriage broke up and this was attributed largely to the problems experienced by his first wife in coping with his medical condition. He came to Australia in 1981 and has resided in Australia ever since.

Mr P was not aware that, upon residing in Australia for ten years, he became eligible for a service pension. He eventually discovered this fact and applied for such a pension and has been receiving that pension.

Mr and Mrs P applied for a Defence Force Home Loan through the Westpac Bank which approved their application subject to obtaining a Certificate from the Department of Veterans= Affairs as to their eligibility.

That Certificate of Eligibility was refused by the Department.

Aspects of the Respondent=s Submission
The respondent=s written submissions are contained in three documents which have become exhibits 2, 5 and 6. These submissions pointed out that the range of services administered by the Department can be placed into two broad categories. One category involves services provided by way of compensation to veterans for their war service. These include both pensions and medical and hospital treatment for war caused disabilities together with a wide range of ancillary benefits. Mr Harrison argues that assistance under the DSH Act comes within that category. Eligibility for compensatory assistance is generally more narrowly defined than the second category and is generally restricted to persons who have been members of the Australian Defence Force.

The other group of services is described by the respondent as income support. This set of services is largely composed of service pensions for eligible persons together with ancillary benefits. The service pension is very similar to the aged pension and the ancillary benefits associated with each pension are similar to each other. One advantage of the service pension is that a person becomes eligible for it five years earlier than one becomes eligible for an aged pension. Eligibility for a service pension, as mentioned, is more broadly based than the compensatory benefits and is available to members of defence forces from other countries including resistance fighters.

The respondent=s essential submission was that it had acted in accordance with the provisions of the DSH Act. Mr P was not an Australian soldier as that term is defined in that Act. The Department was not making distinctions according to race or national origin: it was simply administering the law as it appears in the DSH Act.

The Relevant Definition
The DSH Act, as its name indicates, was passed shortly after the end of the first World War. Under its original rubric, War Service Homes Act, it was assented to on 25 December 1918. It has been altered by amendment on a number of occasions since its original passage. Its long title reads as follows:

ΑAn Act Relating to the Provision of Assistance to Members of the Defence Force and Certain Other Persons to Acquire Homes≅

Consideration of the present complaint is complicated by the fact that the Act does not only contain provisions to compensate ex-servicemen but also contains extensive provisions with regard to presently serving members of the Australian Defence Services. The amount of assistance varies between currently serving members of the Defence Services who are eligible for a subsidised loan of up to $80,000.00 whereas the entitlement of former servicemen to qualify is restricted to a subsidised loan of $25,000.00.

Section 25 of the DSH Act sets out the amounts of loans which can be obtained.

The definition section of the DSH Act is s. 4(1). The definition of eligible person has some seven elements. It reads in part as follows:

Α>Eligible Person= means a person who:

(a) is an Australian soldier;

(b) is a munition worker;

(c) is a war worker;

.........≅

Each of the concepts contained in sub-paragraphs (a) to (c) is separately defined. For the purpose of this application, the relevant definition is that of ΑAustralian soldier≅.

The definition of Australian soldier is very long and deals with a number of different concepts. It not only relates to former soldiers who are being compensated for their active service in theatres of war but also appears to provide for currently serving members of the Australian Defence Forces. The following extract from the definition appears sufficient for the purposes of the issues which I have to decide:

Α>Australian Soldier= means a person who, during the First World War or the Second World War or during the warlike operations in or in connection with Korea after 26 June 1950 or the warlike operations in or in connection with Malaya after 28 June 1950:

(a) is or was a member of the Naval, Military or Air Forces of Australia enlisted or appointed for or employed on active service outside Australia or on a ship of war; or

(b) is or was a member of any nursing service maintained by the Commonwealth in connection with the Defence Force of the Commonwealth or any part thereof accepted or appointed for service outside Australia; or

(c) served in the Naval, Military or Air Forces of any part of the King=s dominions, other than the Commonwealth and who proved to the satisfaction of the Secretary that he had, before his enlistment or appointment for service, resided in Australia or a Territory; or

(d) was a member of any nursing service maintained by the government of any part of the King=s dominions other than the Commonwealth, in connection with the Naval, Military or Air Forces of that part, and who proves to the satisfaction of the Secretary that she had, before her appointment to that service, resided in Australia or a Territory;

.........≅

The requirement that the person who served the military forces of any part of the King=s dominions other than the Commonwealth of Australia (paragraph (c) of the definition) was involved in sufficiently warlike activities is contained in subsection (2B) of section 4 which reads as follows:

Α(2B) For the purposes of paragraph (c) of the definition of >Australian Soldier= in subsection (1), a person shall not be taken to have served in the Naval, Military or Air Forces of any part of the King=s dominions other than the Commonwealth, unless he served in such forces:

(a) in an operational area outside the country or place of his enlistment or appointment for service; or

(b) as a combatant in an active combat unit.≅

It was common ground between the parties that Mr P=s service satisfied the requirements of s. 4(2B). It was also common ground that New Zealand constituted a part of the King=s dominions other than the Commonwealth of Australia. Accordingly, Mr P would have qualified for a subsidised loan except for the requirement that he had, before his enlistment in 1939, resided in Australia or one of its territories.

Although Mrs P did criticise the restricted and old fashioned nature of the term ΑAustralian Soldier≅, the essential element of the complaint of her husband and herself was that Mr P, although otherwise qualified in all respects, was not eligible for a loan because, as a person hailing from New Zealand, he did not satisfy the requirement of having resided in Australia or a territory at some stage before his enlistment in 1939. Mr and Mrs P=s complaint was that New Zealanders, Canadians, West Indians or even South Africans, in fact anyone whose national origin was other than Australian, would be most unlikely to satisfy that particular residence requirement. Such fact, Mrs P argued, constituted the provisions of the DSH Act 1918 and the actions of the Department in administering that Act in breach of the RDA.

Provisions of the RDA
Section 6 of the RDA provides as follows:

ΑSECTION 6 ACT BINDS THE CROWN

6. This Act binds the Crown in the right of the Commonwealth, of each of the States, the Australian Capital Territory, the Northern Territory and Norfolk Island, but nothing in this Act renders the Crown liable to be prosecuted for an offence.≅

Part II of the Act is entitled ΑProhibition of Racial Discrimination≅. The RDA does not have a long list of exemptions. Some of the few exempting provisions are contained in s. 8 which provides that Part II does not apply to matters known as special measures which are described in paragraph 4 of Article 1 of the Convention. The Convention is the International Convention on the Elimination of All Forms of Racial Discrimination which is a schedule to the Act. Special measures referred to in paragraph 4, Article 1, relate to special measures for the sole purpose of securing adequate advancement of disadvantaged ethnic groups and individuals.

Section 8(2) provides that Part II does not apply to documents that confer charitable benefits upon persons of a particular race, colour or national or ethnic origin.

Section 9 of the Act constitutes a general prohibition of racial discrimination. It prohibits both direct and indirect discrimination and it has effect by reference to the broad notion of Αhuman rights and fundamental freedoms≅. Sections 11 and following then prohibit specific acts based on race, colour or national or ethnic origin in specific areas of activity. Section 9 reads as follows:

ΑSECTION 9 RACIAL DISCRIMINATION TO BE UNLAWFUL

9(1) [Unlawful acts] It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

9(1A) [Indirect Discrimination] Where:

(a) a person requires another person to comply with a term, condition or requirement which is not reasonable having regard to the circumstances of the case; and

(b) the other person does not or cannot comply with the term, condition or requirement; and

(c) the requirement to comply has the purpose or effect of nullifying or impairing recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethnic origin as the other person, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life;

The act of requiring such compliance is to be treated, for the purposes of this Part, as an act involving a distinction based on, or an act done by reason of, the other person=s race, colour, descent or national or ethnic origin.

9(2) [Human right or fundament freedom] A reference in this section to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes any right of a kind referred to in Article 5 of the Convention.

9(3) [Employment on ship or aircraft] This section does not apply in respect of the employment, or an application for the employment, of a person on a ship or aircraft (not being an Australian ship or aircraft) if that person was engaged, or applied, for that employment outside Australia.

9(4) [Effect of succeeding provisions] The succeeding provisions of this Part do not limit the generality of this section.≅

Section 10 is an unusual provision. Many anti-discrimination statutes contain provisions which grant exemption from the prohibiting sections of the Act. One form of such exempting provisions exempt acts which are otherwise authorised by a statute or other laws. Section 10 is a provision which purports to override other laws of the Commonwealth and the States which might tend to make a distinction on the grounds of race, colour or national or ethnic origin. It provides as follows:

ΑSECTION 10 RIGHTS TO EQUALITY BEFORE THE LAW

10(1) [Lack of equality before the law] If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent then persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin.

10(2) [Right] A reference in subsection (1) to a right includes a reference to a right of a kind referred to in Article 5 of the Convention.

........≅

A number of sections of the Act provide assistance in applying the sections which create prohibitions of various kinds of racial discrimination. Section 18 provides as follows:

ΑSECTION 18 ACTS DONE FOR TWO OR MORE REASONS

18. Where:
    

(a) an act is done for 2 or more reasons; and

(b) one of the reasons is the race, colour, descent or national or ethnic origin of a person (whether or not it is the dominant reason or a substantial reason for doing the act);

then, for the purposes of this Part, the act is taken to be done for that reason.≅

Section 18A makes provision for vicarious liability of people for the actions of their employees or agents done in connection with their duties as employee or agent. Section 18A(2) provides a defence for such person from vicarious liability if that person took all reasonable steps to prevent the relevant employee or agent from doing the act in question.

Section 19 and following allow for complaints to be lodged with the Race Discrimination Commissioner. Section 22 requires that complaints be such as to allege that a person has done an act that is unlawful (by virtue of the RDA).

Section 24 makes provision for the Race Discrimination Commissioner to enquire into the matters raised by the complaint and also to endeavour to effect a settlement of those matters by conciliation. Section 24(2) already mentioned herein makes provision for the Commissioner to decide not to inquire into an act in circumstances where the Commissioner is satisfied that the act is not unlawful and in certain other circumstances. Section 24 also makes provision for the steps taken in this matter to have the matter referred directly to the Commission for hearing where the Commissioner has declined to enquire into the matter and the complainant has requested that it be referred.

The requirement to conduct an inquiry is contained in s. 25A.

Section 25B provides that, for the purposes of an inquiry, the Commission is not bound by the rules of evidence and may inform itself on any matter in such manner as it thinks fit. The section also requires that inquiries be conducted with as little formality and technicality as is appropriate.

Section 25Z makes provision for the orders which can be made upon an inquiry. The section provides as follows:

ΑSECTION 25Z DETERMINATION OR OTHER DECISION OF THE COMMISSION

25Z(1) [Types of determination] After holding an inquiry, the Commission may -

(a) dismiss the complaint the subject of the inquiry; or

(b) find the complaint substantiated and make a determination, which may include any one or more of the following:

(i) a declaration that the respondent has engaged in conduct rendered unlawful by this Act and should not repeat or continue such unlawful conduct;

(ii) a declaration that the respondent should perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant;

(iii) a declaration that the respondent should employ or re-employ the complainant;

(iv) a declaration that the respondent should pay to the complainant damages by way of compensation for any loss or damage suffered by reason of the conduct of a respondent;

(v) a declaration that the respondent should promote the complainant;

(vi) a declaration that the termination of a contract or agreement should be varied to redress any loss or damage suffered by the complainant;

(vii) a declaration that it would be inappropriate for any further action to be taken in the matter.

25Z(2) [Not binding or conclusive] A determination of the Commission under sub-section (1) is not binding or conclusive between any of the parties to the determination.

.......≅

In light of the provisions of s. 25Z(2), Division 3A comprising ss. 25ZC and following makes provision for proceedings in the Federal Court to enforce a determination of the Commission pursuant to s. 25Z where the respondent is someone other than a Commonwealth agency. The provisions of ss. 25ZD and following apply to determinations affecting a Commonwealth agency. Section 25ZF(2) provides as follows:

ΑSECTION 25ZF OBLIGATIONS OF PRINCIPAL EXECUTIVE OF AGENCY

.......

25ZF(2) [Determination under s. 25Z] If the principal executive of a Commonwealth agency is the respondent to a determination to which this division applies that is made under s. 25Z, the principal executive must take all such steps as are reasonably within his or her power to ensure:

(a) that the terms of the determination are brought to the notice of all members, officers and employees of the agency whose duties are such that they may engage in conduct of the kind to which the determination relates; and

(b) that no member, officer or employee of the agency repeats or continues conduct that is covered by a declaration included in the determination under subparagraph 25Z(1)(b)(i); and

(c) the performance of any act or course of conduct that is covered by a declaration included in the determination under subparagraph 25Z(1)(b)(ii), (iii), (v) or (vi).≅

Section 25ZG provides that declarations that the respondent should pay damages to a complainant entitle a complainant to be entitled to be paid the damages and such debt is recoverable as a debt due by the Commonwealth agency to the complainant.

Section 25ZH provides that an application may be made to the Administrative Appeals Tribunal. The section reads as follows:

ΑSECTION 25ZH REVIEW OF DETERMINATIONS REGARDING DAMAGES

25ZH(1) [Application for review] Application may be made to the Administrative Appeals Tribunal for review of:

(a) a declaration of the kind referred to in subparagraph 25Z(1)(b)(iv) that is included in a determination to which this division applies; or

(b) a decision of the Commission refusing to include such declaration in a determination to which this division applies.

25ZH(2) [Permission required] A Commonwealth agency, or the principal executive of a Commonwealth agency, may not apply for review without the permission of a Minister.

25ZH(3) [Constitution of Tribunal] In exercising powers in relation to an application under subsection (1), the Tribunal must be constituted by a presidential member who is a Judge and two other members who are not Judges. This subsection has effect subject to subsection 21(1A) of the Administrative Appeals Tribunal Act 1975

.......≅

Relationship between Sections 9 and 10

The argument of the complainants is that the provisions of the DSH Act have the effect that Mr P, as a person of New Zealand national origin, does not enjoy a right to a subsidised home loan enjoyed by persons in other respects similar to himself and of Australian national origin. Alternatively, as a person of New Zealand national origin, he has a right to be considered for entitlements under the DSH Act but this right is more limited because of his national origin than persons of Australian national origin.

It is important to note that, pursuant to s. 10(2) of the RDA, the rights referred to in Article 5 of the Convention are not exhaustive of the rights granted by s. 10(1).

If the complainants= argument is correct, the DSH Act is overridden to the extent necessary to ensure that persons such as Mr P enjoy their rights under the DSH Act to the same extent as persons of Australian national origin.

The complaints provided for by s. 22 do not include complaints which seek a declaration as to the impact of s. 10 on other legislation. The complaint may only allege that another person has done an act that is unlawful pursuant to Part II or other sections of the RDA. Similarly, orders which can be made pursuant to s. 25Z of the Act do not include a general power to make declarations with regard to the impact of s. 10 on other legislative provisions which tend to have a racially discriminatory effect. Both complaints and orders or determinations are restricted to unlawful conduct.

The respondent argues that the actions of its officers are merely those required by the relevant sections of the DSH Act. No officer seeks to do anything other than to implement the sections of the Act and certainly no officer seeks to make distinctions on the basis of race, colour, ethnic or national origin. Therefore, the respondent cannot be said to have made any distinction unlawful pursuant to s. 9. Therefore, even if the complainants= argument that s. 10 overrides the DSH Act is correct, there is no basis for a complaint and no available remedy and the complaint should be dismissed.

Such a result would seem paradoxical although the complainants would have a right to seek a declaration from a Court. Resolution of the paradox may be contained in s. 18. If, in fact, applying paragraph (c) of the definition of ΑAustralian Soldier≅ in s. 4(1) of the DSH Act does involve distinctions or discrimination on the basis of national origin, then the national origin of Mr P, along with the desire to comply with the Act=s provisions, may be one of the reasons for the actions of the officers. That is, if the definition makes a distinction on the basis of national origin, the national origin basis may attach to the Department=s actions as one of the reasons for the officer=s actions in refusing the benefit. It seems to me that such a result is not illogical although, in those circumstances, the actions of the officers of the respondent should carry no moral opprobrium.

I have mentioned that s. 10 is not restricted to the rights referred to in Article 5 of the Convention. Provisions of s. 9 are so restricted. It seems to me, however, that the right to receive the benefits that arise under the DSH Act come within the economic, social and cultural rights referred to in subparagraph (e) of Article 5 of the Convention particularly those referred to in sub-subparagraph (e)(iv), namely, Αthe right to public health, medical care, social security and social services≅.

Relationship Between Residential Requirements and National Origin
The requirement of paragraph (c) of the definition of ΑAustralian Soldier≅ (Αthe definition≅) that the person who seeks to meet the definition prove that he or she had, prior to enlistment resided in Australia is not a requirement which, on its face, makes reference to national origin. Just as, in accordance with the complainants= argument, it is unlikely that Canadians or South Africans who served in the armed forces of any of His Majesty=s dominions would have resided in Australia prior to enlistment, it was technically possible for a person of New Zealand origin to have resided in Australia prior to joining up with either the New Zealand or British armed forces. That is, although very few people of non-Australian national origin are likely to fulfil the requirement, it is technically possible for a person of any national origin to have satisfied the qualification.

The respondent argued that the purpose of the DSH Act was to provide compensatory benefits to persons who had served in the Australian armed services. The respondent argued that national origin was not a factor but rather qualification for subsidised loans was based on having been an Australian soldier in sufficiently active military activity. It seems to me that, while that argument may be valid with regard to other sub-paragraphs of the definition of Australian soldier, the part of the definition currently under consideration (sub-paragraph (c)) clearly makes service in the armed forces of countries of the Empire or Commonwealth the basic criterion and not service in the Australian armed forces only. In my view, the respondent=s argument in that respect should not be accepted.

A number of decisions in different fora have considered aspects of the relationship between discrimination on the ground of national origin and issues of residence. In Lewis v Trebilco [1984] FCA 93; (1984) 53 ALR 581, the appellant was made the subject of an order deporting him from the island of Norfolk Island, an Australian territory. The right to continue to reside in Norfolk Island is made dependent upon being declared a resident. One could apply to the administrator to be so declared on the basis of a number of qualifying characteristics which included being born on the island and not having taken citizenship of a country other than Australia; being a child, spouse or parent of a resident who is ordinarily resident and continues to reside ordinarily on Norfolk Island; as well as a more discretionary provision which involved a history of ordinary residence in Norfolk Island, good character, adequate knowledge of the English language, and having been assimilated into the Norfolk Island community.

The appellant was born in Kenya and had become an Australian citizen in 1981. He had been a school teacher on the island for a number of years. He alleged that, in the light of Norfolk Island=s separate identity with its own flag and customs laws, the ordinance under which he was being deported recognised residents of Norfolk Island as a race or people or nation separate from other Australian citizens. The Full Court of the Federal Court consisting of Bowen CJ and Lockhart and Morling JJ dismissed the arguments of the appellant in the following terms:

ΑIn our opinion the appellant=s status as a prohibited immigrant under the Ordinance has no nexus with any question of race, colour, descent or national or ethnic origin. The appellant was not a >resident= within the meaning of the Ordinance or the holder at the material time of a temporary entry permit....... Questions of residence depend on the birth in Norfolk Island of the person concerned or of a close relative or long term residence and assimilation into the Norfolk Island community. The Ordinance does not select matters of race, colour, descent or national or ethnic origin as criteria for the determination of the rights of persons to enter or remain on or be deported from the Island. The Administrator=s power to deport prohibited immigrants from the Island arises only in the circumstances mentioned in the Ordinance. In these circumstances it is unnecessary to consider what would constitute a distinction, exclusion or preference based on descent or national or ethnic origin for purposes of s. 9.

We are not considering a case where the Administrator may have purported to exercise his power to deport a person and there is evidence of the power being exercised on grounds involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin. In such a case, the question may arise as to the application of ss. 9 or 10 of the Act; that is not the present case.≅

The case of Henderson v NBL Management Limited (1992) EOC 92-435 involved a basketball player who had been born in the United States of America and had lived there and played competitive basketball there until 1980. Mr Henderson had come to Australia on a contract to play basketball with a Sydney club for two seasons. He met an Australian and married her on 1 February 1983. Mr Henderson played basketball back in the United States from 1982 to 1986. He and his wife and child returned to Australia on 29 October 1986. He became an Australian citizen on 29 September 1989.

International basketball rules restrict the number of foreign players that can play with a club. The same rules require that a person could not acquire a new basketball nationality until three years after he had submitted details of his new legal nationality to the International Basketball Association. The new basketball nationality could only be acquired if the person remained domiciled in his new country for a three year waiting period. The rules in question found their expression both in the rules of FIBA (the international organisation) and the ABF which controlled basketball in Australia.

The effect of the rules was that Mr Henderson could not at the earliest play as an Australian player until three years after he had acquired Australian citizenship. Mr Henderson argued that he had been discriminated against on the basis of his national origin which arose from the fact of his birth in the United States of America.

This argument was rejected by Worthington QC, Commissioner. After citing the English House of Lords decision of Ealing London Borough Council v Race Relations Board [1971] UKHL 3; (1972) AC 342, he went on at p. 79,070 to make the distinction between a person who came from a particular country on the one hand and a person who had changed his legal nationality on the other. The Commissioner said:

ΑA player such as Mr Henderson, having acquired Australian citizenship by naturalisation, is similarly obliged to comply with Regulation 6.4 and 6.5 [of the FIBA Regulations] in that he must be continuously domiciled in Australia for three years after approval of his application before he can obtain Australian basketball nationality. This requirement is not imposed on him by reason of the country of his origin but simply because he has changed his legal nationality. Mr Henderson is required to complete the same three years waiting period as a player who elects to change his legal nationality and one which he is entitled to claim by birth. The three year delay applies to any change of basketball nationality irrespective of the national origin of the player.≅

In Tocigl v Aitco Pty Ltd t/a The Adelaide Casino (1996) EOC 92-775, the President of the Human Rights and Equal Opportunity Commission, Sir Ronald Wilson, dealt with a complaint by a person who was of Australian origin and also resided in Australia against the rebate policies of the Adelaide Casino which gave financial advantages to persons who resided outside of Australia. Sir Ronald decided, as a question of fact, that the policy of the Casino was not in breach of s. 9(1) of the RDA. He said at p. 78,760:

ΑIs the requirement that players must reside overseas before they can participate in the rebate policy unlawful by reason solely of s. 9(1) of the Act?

Even though it was clear from the complainant=s submission through his counsel, Mr Styant-Brown, on 12 September 1994 that the complainant principally relies on s. 9(1) as enlarged in its application by s. 9(1A) of the Act, Mr Styant-Brown also made the follow pertinent submission in his written outline:

>It is not sufficient to simply examine the four corners of the Policy of the Casino and conclude that it does not on its face discriminate on the basis of national origin. Even were it not for subsection 9(1A), the broad intent of the Act is to proscribe any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin (subsection 9(1))=

Counsel for the Casino, Ms Powell QC, submitted that the rebate policy operated irrespective of, inter alia, national origin. On the face of the rebate policy this must be true as the only limiting requirement of that policy is that to receive the rebate the player must live overseas. The complainant contended, however, this may not necessarily be the end of the matter. In Siddiqui v the Australian Medical Council and Commonwealth Minister for Health (1995) EOC 92-703 [a decision of Sir Ronald in the Commission which was subsequently overturned on some points in the Federal Court] this Commission did not specifically exclude the possibility that a complaint pursuant to s. 9(1) may be upheld even though the act itself could not be said to be based per se on national origin. For example, a discriminatory act based upon a physical characteristic sufficiently distinctive to a particular race (other than colour, which is specifically identified in s. 9(1) of the Act) may be caught by s. 9(1) of the Act.

It is my finding, however, that the act complained of, namely the formulation and application of the rebate policy, was not >based on= considerations of national origin within the meaning of s. 9(1) unaffected by s. 9(1A). This complaint, therefore, cannot be substantiated under s. 9(1) of the Act standing alone: cf Siddiqui. In reaching this finding I am mindful of the provisions of s. 18 of the Act, but am nevertheless satisfied that national origin was not a reason for the implementation of the rebate policy. I am particularly influenced by the fact that the policy is transparently based upon residence and to a somewhat lesser extent commercial considerations. In view of the finding, there is no need to address the remaining submissions of the Casino on the issue.≅

Sir Ronald went on to consider the provisions of s. 9(1A). He found for the complainant on the basis that the provisions of that subsection were satisfied.

The decision on appeal in Siddiqui is reported under the name Australian Medical Council v Human Rights and Equal Opportunity Commission and Ors (1996) EOC 838. Lengthy judgments were delivered by Heery J and Sackville J. Black CJ essentially agreed with the reasons given by Heery J.

At p. 79,207, Heery J provides assistance as to the way in which to approach the discriminatory distinction etc referred to in s. 9(1). He said as follows:

ΑSection 9(1) - >Act........based on=
This expression was considered by the South Australian Full Court in ALRM v State of South Australia (1995) EOC 92-759 at 78,634. That case was concerned with the appointment of the Hindmarsh Island Royal Commission. Doyle CJ (with the concurrence of Bollen J) said:

>.....I am of the opinion that the appointment of the Royal Commissioner is not made unlawful by s. 9 of the [RDA]. In my opinion, that section is not attracted unless an act (the relevant act being the appointment of the Royal Commissioner) is done which in fact produced a distinction on the basis of race (which has occurred here because the inquiry is into and affects Aboriginal beliefs only) and the existence of that racial distinction is the basis of the relevant act in the sense that the act occurred by reason of or by reference to the racial distinction. This does not mean that the inquiry is one as to motive. The inquiry is into whether the racial distinction is a material factor in the making of the relevant decision or the performing of the relevant act. (emphasis in original)=

I respectfully agree with that approach. The application of the statutory criterion largely involves questions of fact: cf Human Rights and Equal Opportunity Commission v Mt Isa Mines Ltd (1993) EOC 92-548 (1993) 46 FCR 301 at 324 per Lockhart J......≅

The making of distinctions on a racial basis and in particular the basis of national origin is discussed by Sackville J at p. 79,221 as follows:

ΑThe most obvious case of a distinction based on national origin is one where a distinction is imposed expressly by reference to a person=s national origin. If, for example, a medical college explicitly denied admission to all persons of Indian origin, that act, or the distinction involved in the act, would clearly be based on national origin. (It might also be based on other grounds covered by s. 9(1), but that is not presently relevant). Even where the act or distinction is not expressly based on national origin, if the criterion actually applied by the alleged discriminator is national origin, that is enough to attract the legislation. In James v Eastleigh Council [1990] UKHL 6; [1990] 2 AC 751, for example, free admission to the pool was available to all persons of >pensionable age= and no express reference was made to the sex of those seeking to use the facilities. But since the pensionable age for women was lower than that of men, the discrimination was >on the ground of ......sex=. The case was viewed by Their Lordships as one involving direct discrimination.

In [Australian Iron and Steel Pty Ltd v] Banovic [(1989) EOC 92-271], Deane and Gaudron JJ, when discussing direct discrimination >on the ground of sex= under s. 24(1) of the Anti-Discrimination Act 1997 (NSW), suggested that the >true basis= for an actual decision is the >ground= of the decision. The >true basis= is not necessarily the ground assigned for the act or decision (176-177):

>in the ascertainment of the true basis of an act or decision it may well be significant that there is some factor, other than the ground assigned, which is common to all who are adversely affected by that act or decision. In certain situations that common factor may well be seen to be the true basis of the act or decision. That may also be the case where some factor is identified as common to a significant proportion of those adversely affected.=

Dawson J also adopted the phrase >true basis=. His Honour said (at 184):

>The mere assertion of a ground which is not sex will not take discrimination out of the subsection if the true basis for the action in question is in fact sex. Thus, in the present case if it could have been shown that the >last on, first off= principle was selected as the ground for retrenchment, not as an equitable means of shedding redundant employees, but as a means of shedding female employees more quickly, s. 24(1) would have applied. The true ground would then have been sex and any discrimination would have been on that ground. That was not shown.=

In a future case it may be necessary to consider the relationship between these statements and the view of a majority of the High Court that s. 9(1) and s. 9(1A) are intended to be mutually exclusive.≅

It is necessary to apply these principles as outlined in the various extracts cited above to the decision made by the Department in respect of Mr P=s application for a Defence Force Home Loan.

On its face, subparagraph (c) of the definition of ΑAustralian Soldier≅ purports to relate to residents in Australian at a particular point in time or at least some time prior to enlistment or appointment for service. On its face, the definition seeks only to refer to residence and not to national origin.

However, since the basic qualifying factor for the loan is not service in the Australian Armed Forces but rather the Armed Forces of the Empire or Commonwealth, there seems to have been little purpose in the Parliament imposing the further qualification of residence in Australia prior to enlistment or appointment other than to make a secondary qualifying basis that one must be an Australian or, in terms of the requirements of s. 9(1) of the RDA, a person of Australian origin.

My inclination to come to such a view is strengthened by various statements made by the Minister having carriage of the War Service Homes Bill through the Senate, the then Minister for Repatriation (Senator Millen), during the Committee stages of the debate on the Bill. The comments of the Minister appear to be particularly apposite because there was a proposal from a Senator that the scope of the Bill be extended so that benefits would be provided to any person who had served in the Armed Forces of the Empire and subsequently came to settle in Australia. The relevant debate on the Bill can be found in Commonwealth Hansard Reports of the debates in the Senate for 13 December 1918 at p. 9,233. A copy of the debate was provided to me, with notice to Mr and Mrs P, by Mr Harrison shortly after the oral argument in this matter.

The following passage at p. 9233 and following of the debate indicates the content of and the context of the Minister=s remarks:

ΑSenator Ferricks (Queensland) [11.46] - I desire to bring under the notice of the Minister for Repatriation (Senator Millen) a suggestion to extend the definition of the term >eligible person=. My proposal is that something should be done by the government following upon lines laid down in the Queensland Discharged Soldiers Settlement Act, wherein provision is made for the erection of workers= dwellings at repayment rates..... The scope of the measure might well be extended to embrace any persons who have served in any of the armies of His Majesty the King.

Senator Millen - the term >Australian Soldier= means any Australian who has served with any section of the King=s Forces.

Senator Ferricks - I suggest going even further. The scope of the Queensland Act includes any person who has served in the imperial or any of the dominion armies, and who afterwards settles in Australia....

Senator Ferricks - ......I move -

>that the following paragraph be added to the definition of >eligible person=:

(c) the term may be extended by the Governor General in Council so as to include in any individual cases or class of cases members of His Majesty=s naval or military forces during the present war, whether from the said United Kingdom or any of His Majesty=s dominions, for the purposes of the present war, who have received their discharge from service before their arrival in Australia.=

If the Minister is not inclined to give immediate consideration to the amendment, I hope he will agree to the re-committal of the clause subsequently, in order that some such provision may be included.

Senator Millen (New South Wales - Minister for Repatriation) [1155] - My sympathy is entirely with the suggestion of the Honourable Senator. I would naturally be anxious to do anything possible, not only as a recognition of the war services of our blood brothers in other parts of the empire, but also as an enducement to immigration.......

If the government can see their way clear to adopt the principle of the amendment, they will do so. I ask the Honourable Senator not to press his proposition now, but to accept my assurance that the whole question of the treatment to be meted out to the British soldier is under consideration of the Cabinet, and will be further dealt with during the recess. If Senator Ferricks pushes his amendment now, I shall not be able to support it, although, as he knows, I have every sympathy with it.≅

It seems to me that the Minister, Senator Millen, has clearly expressed the view that the purpose of the way in which Australian Soldier is defined in the legislation is to ensure that the benefits only go to persons of Australian national origin rather than persons of British origin or from other parts of the empire. I am of the view that the real legislative purpose of the residence qualification contained in the definition is to make distinctions on the ground of national origin.

It seems to me also that the actions of the officers of the Department in administering the Act take their categorisation from the Act. While this is facilitated by the provisions of s. 18 of the Act, it may not be essential to rely upon s. 18 for such a conclusion. The term Αbased on.....national.....origin≅ is not necessarily about intention or motive. The issue is also fundamentally one involving a question of fact. If, as a matter of fact, the distinction made by the statute is one based on national origin, then the distinction made by officers of the Department in administering the Act is one also based on national origin. I find also that the said actions which would otherwise be authorised by the DSH Act are not so authorised because of the supervising effect of s. 10 of the RDA.

Accordingly, I find that the failure of the Veterans= Affairs Department to provide a certificate for a subsidised loan pursuant to the Defence Service Homes Act 1918 constituted a breach of s. 9(1) of the Racial Discrimination Act.

I now turn to the question of remedy.

Relief
Although, as I have indicated earlier, the Commission does not have jurisdiction to grant a declaration that s. 10 operates to limit the legal effectiveness of the DSH Act, my findings with regard to the actions of the Department complained of rely upon s. 10 having such an effect.

I am of the view that this is not an appropriate case in which to declare that the respondent should pay damages by way of compensation. In accordance with my findings that no moral approbrium should descend upon the Department and its officers, because they were simply acting to administer legislation, it is appropriate that damages should not be awarded in this case. The obvious and best solution for Mr and Mrs P is that the refusal to grant them the certificate should be rectified as soon as possible.

Conclusion
I find the complaint substantiated and pursuant to s. 25Z(1)(b) I make the following declaration:

(i) That the respondent, the Secretary, Department of Veterans= Affairs, has engaged in conduct rendered unlawful by s. 9(1) of the Racial Discrimination Act 1974 in refusing to provide to Mr P a certificate pursuant to s. 17 of the Defence Service Homes Act 1918;

(ii) That the said respondent should provide the appropriate certificate pursuant to s. 17 within 30 days of receipt of this declaration.

If any problems arise concerning the form of the order, I would be disposed to hear any applications arising therefrom by way of telephone linkup. Such application should be made within 28 days of receipt of these Reasons for Decision.

DATED THIS TWENTY FOURTH DAY OF JULY 1997

STEPHEN KEIM
Hearing Commissioner